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Show MONDAY, AUGUST 12, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE EIGHT in The Supreme Court of The State of Utah ..d Carl E. Fischer, Jr. , and Lillian Fischer, his wife, No. 13530 Plaintiffs and Respondents) FILED v. August 6. 1974 Lester H. Johnson and Mary Johnson, his wife. Defendants and Appellants. Allan E; Mecham, Clerk CROCKETT, Justice: Plaintiffs sued to compel specific performance by the defendants of an earnest money agreement executed in anticipation of entering into a contract of purchase of the defendants' restaurant, known as Quail Run, in southeast Salt Lake County, together with a residence and surrounding property. The defense interposed was that the plaintiffs had not themselves complied with their covenants under the agreement. Upon a trial to the court, findings and judgment were entered for the plaintiffs. Defendants appeal. It is unquestioned that the plaintiffs did not make payment as the agreement provided. The position essayed by them and adopted by the trial court is that actions of the defendants in leaving town and thus making themselves unavailable for closing the transaction was an anticipatory breach; and that inasmuch as the plaintiffs made some efforts to notify defendants that they were ready and willing to perform, they were entitled to specific performance. In attacking that determination, defendants urge that notwithstanding their own conduct, there is no basis in the evidence to justify a conclusion that the plaintiffs sufficiently performed, or tendered performance, of their own obligations upon which to predicate a right to insist on specific performance by the defendants. appreciate the correctness of the plaintiffs' assertion: that under usual circumstances one party to a contract (such as defendants) cannot act designedly to make it difficult or impossible for the other party to perform, But it is also true that specific then invoke a defense of nonperformance. performance is a remedy of equity; and one who invokes it must have clean hands in having done equity himself. That is, he must take care to discharge his own duties under the contract; and he cannot rely on any mere inconvenience as an excuse for his failure to do so. 3 Even if inconvenience or difficulty is encountered, he must make an effort to perform, or to tender performance, which manifests reasonable diligence and a bona fide desire to keep his own promises. We without National Land Company exercising its option. March 15 which to complete the contract Thus plaintiffs had four days, until March 19, and close the deal. There is evidence that on March 16 the real estate agent advised defendants that the plaintiffs wanted to meet with them and close the trans-actioon March 19; and that the defendants told him that they were leaving town and would not be back until March 22; and also that on March 21 , the defendants informed the plaintiffs, through their attorney, that they did not desire to go the defendants actually through with the deal. Howsoever those facts may be, J 9. March m. did return to their residence at about 4:00 p. In addition to the foregoing, the plaintiffs' evidence in support of their contention that they had sufficiently tendered performance on their own part to on the afternoon of require performance by the defendants is as follows: that the latter being abMarch 19 they went to the premises of the defendants and, sent, plaintiffs delivered to an employee of the defendants, a notice which stated that they were ready and willing to enter into and perform the purchase contract as planned. They also delivered a copy of the notice to the real estate agent, and mailed one to the defendants. However, it is conceded that the plaintiffs were not then prepared to tender, and that they did not tender the $3, 000 payment prerethat they quisite to entering into the contract of sale. Neither did they indicate of the contract. had available the $75, 000 which was to be paid upon the execution revert to an analysis of those facte in the light of the applicable principles of law: There is undoubtedly a basis in the evidence to justify a conclusion that the actions of the defendants created some degree of difficulty or inconvenience for the plaintiffs. Nevertheless, we cannot see therein any basis upon which it' could reasonably be concluded that the plaintiffs discharged the We duty which the law imposes upon them of attempting with reasonable diligence and good faith to do what the agreement required of them. They did not fulfill that obligation by simply serving the notice of willingness to go forward, and 3 yet failing to tender the required $3, 000 payment. The plaintiffs having so failed to put themselves in the position to demand specific performance, the judgment and decree to that effect cannot properly be sustained and it is therefore reversed. Cents to defendants (appellants). WE CONCUR: 1 The earnest money agreement wan executed February 17, 1973. It provided for a sale price of $300, 000; a payment of a $2, 000 earnest money deposit by plaintiffs, which was paid at the time; payment of $3,000 when the seller approved the sale; payment of $75,000 upon the execution of a final contract of sale; and the remainder on terms, immaterial here. It also provided that the approval of the sale by the seller and entry into the final contract were to be completed by March 19, 1973. This was all made subject to a prior option to purchase which defendants had given National Land Company, which was to expire March 15, 1973. 1. Cummings v. Nielsen. 42 Utah 157, 129 P. 619. 2. See Wimer v. Wagner, 323 Mo. 1156, 20 S. W. 2d 650, 79 A. L. R. 1231; Kinberger v. Drouet, 149 La. 986, 90 So. 367; Maughlin v. Perry, 35 Md. 352; and see annotation, 147 A. L. R. 1312. Pacific Marine Schwabacher, Inc. Plaintiff and Respondent, v. , Defendant and Appellant. CALLISTER, , Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice R. L. Tuckett, Justice This court has held in a number of cases that in order to claim specific per formancc, a party must either perform or tender performance, in accordance with the covenants in his contract; See Nance v. Schoonover, Utah 2d , 3. P. 2d 896; Sieverts v. White. 2 Utah 2d 351. 2"3 Ouzounian 24 Utah 2d 39. 465 P. 2d 356. 521 P. 2d 9747"Coombs v. he Mr. Bauer testified that after fishing season began in the that from dealers boats water were with filling began receiving complaints between the inner and outer hulls. This condition made the boats unmanageable and increased their weight. He contacted Mr. Thomas, who suggested that marine sealant be applied to certain screw holes; this did not alleviate the condition. Several dealers returned boats, and Mr. Bauer observed that the acrylic had peeled off along the bottom and around the back of the transom. mid-Apr- il, FILED Allan E. Mecham, Clerk Chief Justice: Plaintiff is a wholesale distributor of boats and marine products in the Pacific Northwest, with offices in Seattle, Washington. Defendant manufactures various typet of boats at if. plant in Salt Lake City, Utah. The subject matter of this dispute is a small acrylic plastic boat, identified as a TR110, which is approximately eleven feet long and weighs 125 pounds and is designed to be transported on top of an automobile and used for fishing. Plaintiff initiated this action to recover the purchase price of 27 TR1 10 boats that it had bought from defendant on the ground that the merchandise was defective, was not as represented by defendant, was not fit for the purposes intended, and was not saleable. Upon trial before the court, judgment was rendered in favor of plaintiff; defendant appeals therefrom. In the autumn of 1970, defendant's sales representative Mr. Franklin, contacted plaintiff's General Manager of the Marine Division, Mr. Bauer, and submitted certain pieces of acrylic, which he represented were used in the construction of the TR110. One of the pieces was composed of two flat sheets of acrylic fused with a fiberglass center. The other piece illustrated the effect of the molding process by which the boats were constructed on the two fused sheets of acrylic, i. e. the thickness of the laminant decreased in the curved sections. Mr. Franklin and defendant's Marketing Manager, Mr. Thomas, assembled a boat, which Mr. Franklin left with Mr. Bauer for thirty days as a model of the TR110. Plaintiff initially ordered 12 boats; on December 29, 1970, plaintiff ordered 60 boats, which defendant delivered in Seattle, Washington in February, 1971. After a minor adjustment for some superficial shipping damage, plaintiff paid the purchase price of $8, 698. 20 ($144. 97 per unit) on March 1, 1971. Tlaintiff then proceeded to market the boats to retailers in March and April. The TR1 10 is a double hull boat. A sheet of raw acrylic is heated to a high temperature, when it becomes pliable it is vacuumed into a mold; both male and female units are so constructed.' The outer hull is reinforced with fiber glass and the inner hull is then bonded thereto with resins. The two sections do not touch in the areas of the seal, flotation compartment, and the forward deck. Mr. Thomas, while employed by defendant, designed, prepared and initiated the production of the TR1 10. Production began approximately in August of 1970, and plaintiff's order of 60 units was the largest single order filled. Mr. Thomas testified that it was not part of the design that the fiberglass portion should be waterproofed, since the outer acrylic coating would I Jr. serve this purpose. No. 13532 Augunl 2, 1974 Hydroswift Corporation, E. R. Callister. He further observed that the plastic was eggshell-thi- n in spots on other boats. He compared the boats with the materials that he had been r.ubmitted and which had been represented as the quality of the construction, andinitially he found the acrylic on the boats much thinner. He notified defendant by Jotter that the thickness of the acrylic was not as represented; that it was eggshell-thi- n and that with one pull upon the beach,' it began to peel. Mr. Bauer requested that defendant pick up the remaining boats that he had in his stock and six that had been returned. .1 Mr. Franklin testified that he had observed the boats in the spring of and 1971, they were inferior to the pilot model; along the keel line and chine line in the area of the transom the acrylic was deficient. He testified that on some of the boats he observed in plaintiff's warehouse Ihe acrylic was wrinkled in some areas where it was thin. The witnesses who testified appeared to be in agreement thai the beaching of the TR110 was an integral part of the ordinary use of the boat. The trial court found and the record so substantiates that plaintiff, upon discovery of the defects notified defendant of its revocation of acceptance of the boats and requested defendant pick up the bnats remaining in plaintiff's warehouse and refund the purchase price. Defendant recognised this revocation and agreed to pick up the remaining boats. On November 22, 1971, defendant picked up six of the boats but refused to transport the remaining 21. Defendant has refused to refund any of the purchase price, although defendant admitted that it had repaired the six boats and resold them. The trial court further found that by reason of defendant's failure to pick up 21 boats, plaintiff was required to store them and was entitled to the reasonable value of the storage space in the sum of $1,008. 00. Mr. Denning, a sales representative of defendant, testified that he reand paired purchased one of the six boats which plaintiff had returned He stated that the acrylic had worn down and shipped away in the area of the bow and the keel line. He patched the area with a fiberglass mat and cloth and not with acrylic. This patch was approximately. three feet long and six inches wide Subsequently, he applied an additional patch of the same type which extended farther back on the bottom of the boat. The trial court went to a lot parkins and personally examined Mr. Denning' s boat. .' Based on the foregoing facts, the trial court found that the boats were oeiecuve ana not ai represented ana were not fit for purposes intended and were not salable or merchantable, particularly, thm. wisj-not mo con- - ' i k,. t I I n |